The closure
of the employment file of T. Laframboise for his failure to meet the terms and
conditions of the reinstatement agreement dated 11 October 2007.

JOINT
STATEMENT OF ISSUE:

On 17
September 2007, the grievor was involved in an accident in the Company’s
MacMillan Yard in Concord, Ontario. As a result of this incident, the
grievor was requested to submit to testing, as per the Company’s Policy to
Prevent Workplace Alcohol and Drug Problems, to which he refused, to which he
identified that he was going to resign anyway.

On 19
September 2007, the Union requested of the Company that they reconsider the
grievor’s resignation and that the Union had
discussed the possibility that the Company would require post accident testing.
Following this the parties agreed to rescind the grievor’s resignation notice,
however the grievor would be required to sign and commit to a reinstatement
agreement, which was signed between all parties on 1 October 2007.

On 3
October 2007, CN’s OHS advised the Company that the grievor did not pass the
medical fitness for duty because of a positive test as was required under Item
(1) of the agreement.

The Union maintains that the grievor was in fact unaware that
the test would detect the presence of THC some 50 to 60 days later, and in that
he had partaken in the use of marijuana in the early part of August 2007.

The Union
submits that the grievor’s positive test does not indicate or confirm a
violation of Rule G, or that he has an addiction problem, and the grievor
submitted to a test again on October 29, 2007, which showed a clear test, and
which the Union is prepared to forward to the Company.

The Union maintains that this new employee was receptive
throughout the process, was lacking experience and knowledge of the territory
and, in view of his discipline history being clear, is deserving of
reconsideration of the dismissal.

The Company
disagrees with the Union’s contentions and has declined the Union’s
grievance.

FOR
THE UNION:FOR
THE COMPANY:

(SGD.)
J. ROBBINS(SGD.) F. O’NEILL

GENERAL CHAIRMANMANAGER,
LABOUR RELATIONS

There
appeared on behalf of the Company:

F. O’Neill– Manager, Labour
Relations, MacMillan
Yard, Concord

R. A. Bowden– Manager, Labour
Relations, MacMillan
Yard, Concord

And on
behalf of the Union:

R. A. Beatty– Transition Director, Sault
Ste. Marie

J. Robbins– General Chairman, Sarnia

P. Vickers– General Chairman, Sarnia

G. Gower– Vice-General
Chairman, Belleville

AWARD OF THE ARBITRATOR

The
grievor was hired in April 2007. He was working as the Yard Helper on September
17, 2007 at 03:00 hours. This assignment involved the grievor operating a belt
pack, from the point of the movement, while pulling 100 cars from the Green Route at
MacMillan Yard. The movement collided with a train departing the yard from the
Halton Outbound. A number of cars were derailed. The Company initiated
post-incident drug testing under its Drug & Alcohol Policy.

The
grievor took a breathalyser test at 05:45 which tested 0% for alcohol. The
grievor maintains that he was then asked but unable to physically provide a
urine sample. The grievor further claims that he then asked his Company Officer
that he be allowed to return later in the day to provide the urine sample. The
grievor then decided to resign his position while on site and left the premises
at 06:20. Before leaving, he was asked to sign a document acknowledging his
refusal to provide a urine sample. The grievor maintains that he refused to
sign because he had already attempted to provide a urine sample, and also
because he had offered to provide a sample later that same day. As noted in the
Joint Statement of Issue, his resignation was subsequently rescinded after the Union became involved. The grievor signed a Last Chance
Agreement on October 1, 2007. The Company maintains that the grievor breached
the Agreement, and was subsequently dismissed, because he tested positive for
illegal drugs on October 3, 2007 in breach of the Agreement which reads:

The
following items will govern Mr. Laframboise’s
re-employment and continued employment:

1Mr. Laframboise will be required prior to
returning to service, agree to undergo a Company medical assessment for fitness
for duty, including any tests (blood, urine or breath analyses) deemed
necessary by the Chief Medical Officer, or designate. Should the fitness for
duty assessment determine that Mr. Laframboise is not medically fit to occupy
his position, because of a substance use disorder, Mr. Laframboise will no
longer be eligible for re-employment and or continued employment, and his file
will remain closed with CN.

2.This “last chance” agreement will serve to
resolve any and all outstanding issues, including grievances submitted on Mr.
Laframboise’s behalf.

3.Mr. Laframboise will be subject to an employment
contract for two years following the date of signature and it is understood
that violation of the Company’s Drug and Alcohol Policy will result in Mr.
Laframboise’s immediate discharge from Company service.

4.Mr. Laframboise’s time out of service between
the date of his resignation and re-employment will be without wage or benefit
compensation and without loss of seniority.

5.Mr. Laframboise will be subject to an
employment contract for a term of two years following the date of a medical
approved reinstatement.

6.Mr. Laframboise will be subject to random
unannounced drug and alcohol testing for the duration of this contract.

7.Upon successful reinstatement, Mr. Laframboise
will be placed on the position he held prior to his resignation.

8.Mr. Laframboise will be required to meet with
Mr. Doug Ryhorchuk General Superintendent – MacMillan Yard and/or Mr. Michael
Farkough General Manager – Toronto Division and your office to review this
document and the overall Company expectations of Mr. Laframboise regarding CN
Attendance Management Standard Policy and work performance, which will be
monitored. Failure to comply with CN’s AMS policy will result in termination of
this contract.

…

(signed) F.
Laframboise

Oct. 1, 2007

The
letter of termination of October 11, 2007 reads in part as follows:

Item Number 1 of the reinstatement
agreement provided, that you must pass a medical assessment in order to be
eligible for reinstatement. As you failed to meet the terms and conditions of
the reinstatement agreement, your employment file with CN will remain closed.

…

D.V.
Ryhorchuk

Terminal Superintendent, MacMillan Yard

The
basis for the Company’s position that the grievor failed to pass the medical
assessment is set out in a letter the Company’s OH&S Department which reads
as follows:

Under the terms of the employment contract for Mr. Terry
Laframboise signed October 1, a medical assessment of fitness for duty was
organized by CN Occupational Health Services. Mr. Laframboise did not pass the
medical assessment of fitness for duty because of a positive drug test (illegal
drugs).

Please let me know if you need any more information

Kathy
Smolynec

CN Occupational Health Services

The
Union maintains that the grievor did not
violate the Company policy because the positive test is not conclusive of
“substance use abuse”, nor is it conclusive of the time such drug was consumed
or impairment. In that regard, the Union
submits that the detection of drugs does not, in and of itself, demonstrate
that an individual is medically unfit and incapable of performing work-related
tasks. The Union further notes that the
grievor underwent a drug test on October 29, 2007, 14 days after the first
test, and passed the test. In the Union’s
view, the sequence of events demonstrates that the grievor did not use any
drugs subsequent to the signing of the Agreement and, further, that there was
no breach of the Agreement.

The
Company noted that it was Local Chairman Glen Gower who contacted the Company,
some two and a half days after the incident, to say that the grievor had been
in shock and wished to rescind his resignation. The Agreement was put in place
on October 1, 2007 for the grievor’s possible reinstatement. The grievor failed
the first condition of his reinstatement when he tested positive for illegal
drugs. The illegal substance was identified as THC, a marijuana metabolite. The
Company referred to several awards of this office which upheld the dismissal of
an employee where there has been a violation of a condition of the
reinstatement agreement, including a failed drug test. The Company maintains
that its decision to close the grievor’s file was justified under the
circumstances.

The
Arbitrator notes at the outset that the grievor was a new employee, having been
in the service of the Company only since April 2007. The Union states in the
joint statement of issue that the grievor was receptive throughout the process,
lacked experience and had a clear disciplinary record. These factors are not of
any significant weight in this case given that the grievor’s continued
employment, subsequent to his resignation, hinged on his fulfillment of the
conditions set out in the Agreement dated October 1, 2007.

Turning
to the pivotal provision which led to the closing of the grievor’s employment
file, Item #1, I note the Union’ s claim that the fitness for duty assessment
by the Chief Medical Officer has two components: first, fitness for duty and,
second, whether the grievor suffered from a substance disorder. The Union suggests that Item #1 should be interpreted to mean
that the mere fact the grievor tested positive for THC does not, in and of
itself, support the position that he is medically unfit or provide proof that
he suffered from a substance abuse disorder.

The
Arbitrator does not accept the Union’s narrow
interpretation of Item #1. The bottom line of Item #1 of the Agreement is that
the Company, the Union and the grievor clearly
understood that the determination of the grievor’s fitness for duty depended on
the grievor being able to successfully pass a blood, urine or breath analysis
test. The unrefuted evidence in the form of the October 3, 2007 correspondence
from the OH&S Department is that the grievor failed the required urine test
for drugs and tested positive for THC. The Company then properly relied on the
test results as basis to establish that the grievor was not medically fit for
duty because of his failure to pass the required drug test. The reference to a
substance abuse disorder in Item #1 is, in my view, incidental to the focal
concern of whether or not the grievor was medically for duty. He was not fit
for duty because he was unable to pass the drug test, an agreed precondition to
his reinstatement. The grievor was not reinstated to his employment because he
was unable to fulfill the conditions set out in Item #1 of the Agreement.

Finally,
I do not accept the Union’s submission that a
single test was inconclusive of the grievor’s medical fitness. The test was
done under the auspices of the Chief Medical Officer. There is no evidence
adduced, expert or otherwise, to contradict the findings. The Agreement
contemplates exactly the kind of testing that took place. The grievor is
precluded from now raising the propriety of the test when the facts are that he
agreed to it in the first place as a condition of his reemployment.

The
grievor failed to meet one the requirements of his reemployment Agreement. His
failure to do so was a consequence of his inability to pass a drug test. Given
the nature of the Agreement between the parties, there is no basis for the
Arbitrator to interfere with the decision not to reinstate the grievor.
Accordingly, the grievance is dismissed.